Ravindra Ramakant Pathak vs State of Gujarat

Mr. R.P. Dholaria, J. (Oral)—The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 26/09/2003 rendered by the learned Special Judge, Court No.3, Ahmedabad in Special Case No.66 of 1995 whereby the appellant has been convicted for the offence punishable under Section 7 read with Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment of three years and fine of Rs. 5,000/- and in default to pay fine, to under go further rigorous imprisonment of three months and also sentenced to undergo two years rigorous imprisonment and fine of Rs. 5,000/- and in default to pay fine, to undergo further rigorous imprisonment of three months. Both substantive sentences to run concurrently.

The short facts giving rise to the present appeal are that One Sanat Chimanlal Joshi, complainant had supplied certain goods to the ONGC, Mehsana and to make his account clear he had to obtain GRV from the Store Keeper and on that count the accused had demanded illegal gratification of Rs. 1,000/- from the complainant. As the complainant was not ready to pay such illegal gratification, he approached the ACB office, Mehsana. The complaint was lodged and two panchs were called for raid. In the raid the accused was found to have demanded and accepted bribe of Rs. 1,000/- and he was caught red handed and, thereby the appellant-accused committed the offence. Hence, the complaint came to be lodged against the appellant-accused.

In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidences.

3.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr. P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.

Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.

By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed as such.

Mr. R. K. Mishra, learned advocate for the appellant has argued that in the present case, neither the complainant nor PW-1 who accompanied the complainant at the time of trap have supported the case of the prosecution. Even in their depositions, the prosecution has not at all brought on record the fact as regards to demand and acceptance. Consequently, therefore, even if the tainted currency notes of Rs. 1,000/- claimed to be recovered, the same renders meaningless. He has taken this Court through the entire evidence of the complainant as well as PW-1 and PW-2 and he had argued that learned Special Judge unnecessarily given undue importance to the provisions of Section 20 of the Prevention of Corruption Act and by way of raising said presumption which is not permitted under the provisions of law, convicted the accused which is not sustainable at law. He has further argued that since the complainant and PW-1 who are crucial witnesses so far as the trap is concerned, from their evidence, no iota of evidence is available on record as regards to vital ingredients constituting the offence is concerned, therefore, the evidence of other witnesses is not material. Therefore, he has urged this Court to allow the present appeal and set aside the judgment of conviction.

On the other-hand, Ms. H. B. Punani, learned APP has supported the judgment rendered by learned trial Court and has argued that since recovery came to be effected from the accused and even test of anthracene powder is positive and therefore, theory of demand and acceptance is getting corroboration from the recovery and therefore, judgment of conviction recorded by the learned Trial Court requires no interference. She has therefore, argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such.

Mr. R.C. Kodekar, learned advocate for the CBI has taken this Court through the paper book, evidence of material witnesses as well as impugned judgment and he has argued that since the prosecution has established the vital ingredients, constituting the offence and in consequence thereof, the judgment of conviction recorded by the learned trial court is not required to be interfered with. He has further argued that the evidence of PW-1 is materially getting corroboration so far as the evidence of the complainant is concerned. On overall examination and evaluation of both the witnesses, vital ingredients as regards to demand, acceptance and recovery are established and the learned Trial Court has rightly believed the same which calls for no interference.

This Court has heard learned advocates for the respective parties.

This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book.

In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.

At this juncture, it would be fruitful to refer to some decisions of Hon''ble Apex Court. In the case of A. Subair v. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon''ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

In the case of State of Kerala and another v. C.P. Rao reported in (2011) 6 SCC 450, the Hon''ble Apex Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In a recent enunciation by the Hon''ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon''ble Apex Court in the case of B. Jayaraj v. State of A.P. Reported in AIR 2014 SC(Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon''ble Apex Court in the case of Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

As per the prosecution version, the accused was serving as Store Keeper in the ONGC who used to issue Goods Receive Voucher (GRV) upon which the bills for material supplied was prepared. As he was not issuing the aforesaid GRV and for which he demanded Rs. 1,000/- from the complainant. As the complainant was not willing to pay bribe, the complainant approached ACB and a trap was laid on 19/10/1995 in which he was caught red handed along with tainted currency notes of Rs. 1,000/- and thereby committed offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1998.

Complainant Witness No.2 Sanat Joshi has deposed that in the year 1995, he was running his business as a supplier of mechanical spare parts and in the year 1995 he supplied such spare parts to ONGC, Mehsana which valued for about Rs. 30,000/- and issued vouchers and bills for the same and he had visited the office of the appellant-accused on 18/10/1995 and during the Diwali festival he stayed for about whole day but he did not receive any payment and he realized from the contact of the officials of the ONGC that as Diwali festival is approaching, the officials are expecting something from him. He has deposed that he was directed to contact Finance Department and Account Department, and the Finance and Account Department directed him to obtain GRV and he approached the present appellant-accused who was working as Store Keeper who said him that the concerned employee is on leave and on being resuming, he will prepare the bill of such voucher and will send to the concerned department and he would receive the payment. He has deposed that thereafter, he also visited again Finance Department where one non Gujarati official was found and he told that as and when GRV will be received, the payment shall be posted to him. At that time, he realized that as Diwali Festival was fast approaching, they must be expecting something. He also deposed that he was confused as to how much he would have to pay for taking payment of Rs. 30,000/-. He has deposed that thereafter he approached ACB as he thought it fit to teach lesson to officials of ONGC and lodged complaint and thereafter he himself has thought it fit as there would be demand of Rs. 1,000/-, therefore, he lodged the said complaint. He has deposed that in pursuance of the complaint, a trap was arranged. He has deposed that at the time of the trap, he was accompanied with PW-1 and he approached the appellant-accused in his office and he inquired from the accused as what happened about his GRV. He has deposed that thereafter he had placed Rs. 1,000/- on the table which was with him. He has deposed that the accused was sitting there and two other persons were also sitting in the office there and he had placed the money to be paid to the accused and thereafter he raised alarm as arranged and thereafter other members of the raiding party arrived at the place of incident and personal search of Shri Pathak-the accused was carried out and money was found out from the drawer of his table. He has deposed that detail panchnama was carried out and anthracene powder test was carried out which was found to be positive.

PW-1 Vijaykumar M. Gurjar has deposed that he was serving as a Peon in the warehouse in Gujarat State Warehouse Corporation in the year 1995 and he was requested to act as panch. He has deposed that he was apprised as to how the bribe was demanded from the complainant by the appellant-accused and he was also made to understand as to how the bribe amount is to be treated with anthracene powder and ultra violet lamp test and he was also directed to accompany the complainant at the time of the actual trap and he was required to hear and view what happened at the time of the incident. He has further deposed that at the time of trap, he proceeded along with the complainant Shri Sanat Joshi towards the chamber of the accused-appellant and at that time, the complainant showed him that the person who was sitting on the chair is Shri R. R. Pathak. He has deposed that after entering in his chamber, the complainant sat on the chair opposite to the accused and the complainant began conversation as regards to GRV with the accused and thereafter the accused had talked on telephone. He has deposed that thereafter the accused told the complainant that GRV is being sent to the account department. He has deposed that thereafter the complainant told that he brought as per earlier talk to which the accused nodded his head and the complainant took out the currency notes from the pocket of his shirt and offered to the accused and the accused accepted the same and place the same in the pocket of his shirt. He has deposed that thereafter the accused asked the complainant as to how much and the complainant replied that it was Rs. 1,000/- and after the amount of bribe was accepted, the complainant went outside the chamber and gave pre-planned signal and thereby ACB people entered in the chamber along with the second panch and personal search of the accused was carried out wherein recovery was made from the accused. In the cross examination, more particularly in para-9 of his deposition, the panch has admitted that the accused has not demanded any amount of illegal gratification. He had also admitted that the complainant entered into conversation as regards to money and bribe to which nothing has been uttered by the accused.

On the overall evaluation of the evidence on record, the complainant himself was declared hostile and he did not support the case of the prosecution. From his evidence, nowhere it is emerging out that the present appellant-accused ever demanded any amount of bribe and on the contrary, it emerges from his evidence that as the Diwali festival was fast approaching, though he was visiting department of ONGC, the officials were directing him to bring GRV. On being submitting said GRV, bills for payment would be prepared and the payment would be sent directly to his house through post. As such GRV was not being processed, therefore, he approached the concerned employee and while he approached the concerned employee, the member working on the table was on leave and was made to understand that as and when he will come, the process would be done and, therefore, the said reply was tendered by the present appellant-accused. Therefore, he presumed that the officials, in view of the Diwali festival is approaching, is expecting money and on that presumption he himself lodged the complaint assuming demand of Rs. 1,000/- as Diwali is fast approaching. Nothing is revealing from the evidence of the complainant that any utterance was there from the complainant as regards to demand of illegal gratification though he put the currency notes on his table and the same are recovered. On the overall analysis of his evidence, neither demand nor acceptance is established. So far as evidence of PW-1 who accompanied the complainant at the time of trap is concerned, he had, in his examination in chief, supported to some extent that while they visited the appellant, he demanded the amount for process of GRV and in his presence, the amount was given to the appellant-accused. However, in the cross examination, more particularly in para-9 of his deposition, he himself has admitted that nothing was said by the appellant as regards to demand of illegal gratification and the complainant himself has voluntarily put the currency notes on the table of the accused.

In that view of the matter, on overall evaluation of the evidence on record, no statutory evidence is emerging out as regards to demand and acceptance of the illegal gratification. Even otherwise also, so far as his evidence is concerned, his evidence may be used for the corroboration purpose only. Since the complainant himself is not stating anything as regards to illegal gratification, even if his evidence may be there also, it is evidence of corroboration in nature.

As such in the present appeal, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies upon the prosecution to prove its case beyond reasonable doubt. In the present case, in view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and therefore as a result, the learned trial court has committed error in relying upon the version put forth by the prosecution. This Court has also gone through the decisions of the Apex Court in the cases of (i) P. Satyanarayan Murthy v. District Inspector of Police, State of Andhra Pradesh reported in (2016) 1 SCC (Cri.) 11, (ii) Selvaraj v. State of Karnataka, reported in (2016) 1 SCC (Cri) 19 and (iii) Krishan Chander v. State of Delhi, reported in AIR 2016 SC 299. In view of settled position as emerging from the aforesaid decisions, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable.

For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 26/09/2003 rendered by the learned Special Judge, Court No.3, Ahmedabad in Special Case No.66 of 1995 is quashed and set aside. The appellant-accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.